Judicial Appointments Commission Faces Race Discrimination Complaint


An allegation of discrimination against a public body is a serious matter requiring close analysis in a public forum. An Employment Tribunal (ET) made that point in permitting a claim against the Judicial Appointments Commission and one of its members to proceed to a final hearing.

A solicitor of colour, of Indian national origin, was one of 238 candidates who applied to the Commission for appointment as a deputy judge of the High Court. After his application proved unsuccessful, he lodged ET proceedings alleging direct and indirect race discrimination. He asserted that he had been treated less favourably than a hypothetical white, or white including mixed-race, comparator would have been.

His application did not progress beyond the first stage of the recruitment process, a paper sift carried out by two Commission members. It was his case that one of them would have scored him more highly had she not been persuaded by the other to lower her scores. He believed that the selection criteria were skewed against him in a discriminatory manner. Although the sift was conducted on a ‘name-blind’ basis, he believed that his race was obvious from the contents of his application.

At a preliminary hearing, defence lawyers argued that his claim against the other member had no real prospect of succeeding, whether on its merits or as a matter of law. The claim against the Commission was, they contended, equally unmeritorious given the name-blind procedure followed. The statistical outcome from the paper sift was said to show that non-white candidates did better than white ones and that candidates of Asian origin did best of all.

The Commission did not, however, seek to have his claim against it struck out on the merits, without a full hearing. The ET assumed that this was because the Commission recognised that it is important that judicial appointment decisions are subject to scrutiny by ETs where allegations of race discrimination are made.

The ET declined to strike out the claim against the other member, who was said to have acted as an agent of the Commission. The ET considered that the complaints against him ought to be allowed to proceed to a final hearing as it was not obvious, at this stage, that they would fail. The statistical evidence and the procedure followed needed to be considered in detail. With that in mind, the ET directed the Commission to disclose documents relating to the recruitment process. Complaints against four other members of the Commission were dismissed upon withdrawal.

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